HIV/AIDS and Law
Isolation of a HIV patient:
Isolation is an invasion of the personal liberty of a person but a balance has to be drawn between the right of the individual and society at large. In a situation of conflict between the right of a private individual and the society, the rights of the society take precedence.
Blood is one of the mediums through which HIV/ AIDS is transmitted. Under the Drugs and Cosmetics Act, 1940 blood is treated as a ‘drug’ for the purpose of regulating its collection, storage and supply.
The Supreme Court issued the following directions concerning operation of blood banks.
- The Union Government shall take steps to establish forthwith a National Council of Blood Transfusion as a society registered under the Societies Registration Act.
- In consultation with the National Council, the State Government/Union Territory (UT) Administration shall establish State Councils, which shall be registered as a society under the Societies Registration Act, in all States/UTs.
- The National Council shall undertake training programmes for training of technical personnel in various fields connected with the operation of blood banks.
- The National Council shall take steps for starting special postgraduate courses in blood collection, processing, storage and transfusion and allies field in various medical colleges and institutions in the country.
- The Union Government, State Governments and UTs should ensure that within a period of not more than a year all blood banks cooperating in the country are duly licensed and if a blood bank is found ill-equipped for being licensed, and remains unlicensed after the expiry of the period of one year, its operations should be rendered impossible through suitable legal action.
- The Union Government, State Governments and UTs shall take steps to discourage the prevalent system of professional donors so that the system of professional donors is completely eliminated within a period of not more than two years.
- The existing machinery for the enforcement of the provisions of the Drugs and Cosmetics Act and Rules should be strengthen and suitableaction be taken in that regard on the basis of the Scheme submitted by the Drugs Controller (I) to the Union Government for up-gradation of the Drugs Control Organization at the Centre and the States.
- Necessary steps should be taken to ensure that Drugs Inspectors duly trained in blood banking operations are posted in adequate numbers so as to ensure periodical checking of the operations of the blood banks through out the country.
An HIV Affected person can not be denied employment or be asked to discontinue his vocation unless it was medically shown that he was suffering from such a disease that can be transmitted through daily chores. The Court also permits a HIV afflicted person to file a case without disclosing his identity due to the stigma attached.AIDS Control Measures:
The high court issued the following directions:
- Sufficient AIDS/HIV test kits to all hospitals and institutions shall be provided. The Government Blood banks as well as licensed blood banks should be compelled to buy fool proof HIV/AIDS test equipment;
- All the Government hospitals should use only disposable needles in injections. Registered medical practitioners should be compelled to use only disposal syringes.
- Bio-medical waste collected from hospitals and nursing homes should be properly destroyed or disposed of.
- There should be more awareness programmes undertaken by the Government especially in rural areas, in slum areas so that people can take preventive measures;
- Having regard to the cost of anti-AIDS drugs, efforts should be made to supply anti-AIDS drugs free of cost like in anti-TB and antileprosy programmes and family welfare programmes;
- Doctors should be encouraged to undergo special training for diagnosis and treatment of AIDS patients;
- There should be proper scheme for rehabilitation of patients who are diagnosed of HIV/AIDS as such persons are ostracized by their community;
- There should be compensatory mechanism to deal with AIDS in case of negligence on part of the blood banks/hospitals by way of free facilities and free access to State funded health institution.
- Doctrine of Constitutional tort should be recognised even for prevention and control of AIDS and State should be made liable for any negligence on part of the health service system subject to the principles laid down in Indian Medical Association vs. V P Shantha(1995)6 SCC 651;
- There should be special treatment facilities in hospitals for those who suffer from HIV/AIDS;
- There should be strict vigilance on licensed blood banks with reference to pre-blood transfusion testing for HIV and there should be effective educational and training programmes for those who manage the blood banks.
- The Government may consider introducing sex education in schools at least from the adolescent stage;
- The identity of patients who come for treatment of HIV/AIDS should not be disclosed so that other patients will also come forward for treatment;
- There should be change in the method of AIDS propaganda and no slogans promoting indiscriminate sex, should be used in the propaganda;
- The HIV infected person should be educated about AIDS so that he may not inadvertently or innocently be responsible in spreading the disease;
- The latest method of testing blood for HIV/ AIDS should be introduced in all the hospitals by giving subsidies so that tests can be conducted at reduced costs;
- The high court observed that the manner in which bio-medical waste are disposed off has relevance to the prevention of HIV/AIDS because such wastes includes used needles and syringes, and there is a possibility of the used syringes and needles being reused. All the hospitals and nursing homes should be directed to dispose of their bio-medical waste in terms of Bio-medical Waste (Management and Handling) Rules 1998 and they shall strictly comply with the norms specified therein. Such hospitals shall be directed to obtain the necessary authorization for disposal of the waste from PCB;
- Like the Central Government that has exempted medicines imported for treatment of AIDS from payment of Central excise duty, the State Government should also consider the desirability of grant of sales tax exemption in relation thereto;
- It is axiomatic that no mandamus would issue to the Legislature to enact legislation in the matter but, having regard to the submissions made at the Bar as also taking notice of the fact that Maharashtra and Karnataka have already introduced Bills in this behalf in its respective Legislature, the Government of Andhra Pradesh may also consider the desirability of introducing a similar Bill before the State Legislature.
- The State shall issue necessary circulars to such public sector undertakings and other private sector companies to see that the person suffering from HIV/AIDS are identified and/ or given proper treatment.
Ex. Const. Badan Singh vs. Union of India and Anr11 was a case decided by the Delhi High Court in which the petitioner was a BSF Jawan who had completed six years service with the force and was detected suffering with HIV. The medical board came to the conclusion that he was unfit for further service and his service was terminated. The court after hearing the case however held that Badan Singh should be given pension.
The court held that “it could hardly be presumed that he intended to contract the fatal and stigmatic health order. No person would be happy to reap the benefits of a pension. Given a choice any person would prefer to work. It’s the duty of the government to provide for health care and a pension is not a paisa more than his obligation.”
Confidentiality and Right to Marry:
The Supreme Court observed that the relationship between doctor and patient was that of trust. No information acquired during course of treatment should be divulged without the prior permission of the patient.
In case of HIV/AIDS patients, confidentiality is paramount because of the repercussions of disclosure. Nevertheless, the right of an HIV infected person to lead a normal life can not be at the cost of others.
Supreme Court held that when two rights collide the one that promotes morality and public interest should be upheld. Further, to condemn a person to death by transmitting AIDS not only violates his/her right to life but is also punishable under provisions of Indian Penal Code. Statutory provisions impose a duty upon the person not to marry as marriage would have the effect of spreading the infection, which obviously is dangerous to life of the woman/man whom he/she marries.However there are many grey areas in the aforementioned rulings, such as marriage by mutual consent in which one of the partners is an HIV patient.
Discrimination during Recruitment
It is discriminatory in nature to deny gainful employment to persons suffering with HIV.